Sea Coatings (Australia) Pty Limited & Anor v Pascoe & Ors

Court of Appeal (NSW)|2008-08-26|Before: Hodgson JA, Tobias JA, Harrison J

Appeal Outcome: Special leave refused with costs by the High Court - 26 August 2008

CITATION: Sea Coatings (Australia) Pty Limited & Anor v Pascoe & Ors [2008] NSWCA 54

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 2; Handley AJA at 3

CATCHWORDS: LIMITATION OF ACTIONS - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act - WORKERS' COMPENSATION -Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 for purposes of Act only last employer liable for compensation - Sections 15 and 16 not directly relevant to sections dealing with damages - WORKERS' COMPENSATION - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act

Workers' Compensation Act 1987 LEGISLATION CITED: Limitation Act 1969 Suitors' Fund Act 1951

Cartledge v E Jopling & Sons Ltd [1963] AC 758 Hobbs v Costain Australia Ltd (1995) 11 NSWCCR 56 University of New England v Larsen-Walsh [2000] NSWCA 363 Kotevski v Esselte Australia Pty Limited [2005] NSWCA 126 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Brisbane South Regional Health v Taylor [1996] HCA 25, 186 CLR 541 Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45, 64 CLR 538 Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 Commonwealth of Australia v Shaw [2006] NSWCA 209, 66 NSWLR 325

Sea Coatings (Australia) Pty Limited (First Appellant) PARTIES: Jody Pascoe (First Respondent) Edsome Pty Limited (Second Appellant) Jody Pascoe (Second Respondent)

D J Hooke (First Appellant) COUNSEL: J A Gracie (Second Appellant) D Elliott (First and Second Respondent)

Ellison Tillyard Callanan (First Appellant) SOLICITORS: Vardanega Roberts (Second Appellant) G H Healey & Co (First and Second Respondent)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT JUDICIAL OFFICER: Associate Justice Harrison

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40371/07 CA 40372/07

HODGSON JA TOBIAS JA HANDLEY AJA

7 April 2008 SEA COATINGS (AUSTRALIA) PTY LIMITED & ANOR v JODY PASCOE & ORS EDSOME PTY LIMITED v JODY PASCOE & ORS

LIMITATION OF ACTIONS - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act

WORKERS' COMPENSATION - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 for purposes of Act only last employer liable for compensation - Sections 15 and 16 not directly relevant to sections dealing with damages

WORKERS' COMPENSATION - WORKERS' COMPENSATION ACT s 151D(2) - Employer liable to pay compensation - Disease contracted or aggravated by nature and conditions of employment - Under ss 15 and 16 only last employer liable to pay compensation - common law claims against other employers within Limitation Act HEADNOTE

In the course of his employment between 1986 and 1999 the respondent was exposed to dusts and fumes. In 1995 he began to suffer respiratory symptoms which culminated in pneumonia and asthma that led to him being hospitalised. He has continued to suffer from a number of chest conditions. He commenced proceedings against four companies in the Common Law Division in August 2001 claiming damages for negligence. On 22 December 2003 he filed a notice of motion under s 151D(2) of the Workers' Compensation Act seeking retrospective leave to commence proceedings out of time against three of the defendants alleged to have been his employers at relevant times. The hearing of the motion did not commence until 16 November 2006. The Associate Judge granted leave and the three employers sought leave to appeal.

HELD: (1) The evidence established conclusively that the first two claimants had not employed the plaintiff since 1 July 1991 and had probably never employed him; (2) Employment records prior to 1 July 1991 which could have established beyond doubt that those claimants had never employed the respondent were no longer in existence; (3) Those claimants would be materially prejudiced if the question of employment before 1 July 1991 could be litigated at the trial on oral evidence; (4) The judge's exercise of discretion in respect of the first two claimants was vitiated by a number of errors; (5) The respondent's injury fell within s 15 or possibly s 16 of the Act and the third claimant, as the last employer, was the only employer who could be liable to pay compensation to the plaintiff for the purposes of s 151D(2); (6) The first two claimants were not employers "liable to pay … compensation" in respect of the respondent's injury for the purposes of s 151D(2); (7) The claims against the first two claimants were covered by the Limitation Act, and the respondent's application in respect of those claimants was governed by ss 60C and 60E of that Act; (8) On a re-exercise of the discretion under those provisions an extension of the limitation period in respect of those claimants should be refused; (9) The medical evidence in the respondent's case against the third claimant on the issue of causation was weak at best. On one view there was no evidence that his respiratory problems were, more probably than not, caused by his industrial exposure; (10) The apparent weakness of the respondent's case on the causation issue militated against the grant of leave in respect of the third claimant; (11) The judge's exercise of discretion in respect of the third claimant was vitiated by error; (12) On a re-exercise of the discretion leave should not be granted under s 151D(2) to bring proceedings against the third claimant.

ORDERS CA NO 40371 OF 2007 1. Leave to appeal granted. 2. The appellants to file their Notice of Appeal within ten days. 3. Appeal allowed with costs. 4. Order of Associate Justice Harrison granting leave under s 151D(2) of the Workers' Compensation Act to commence proceedings set aside. 5. In lieu thereof order that the Notice of Motion of 22 December 2003 be dismissed with costs as against the appellants. 6. Respondent to have a certificate under the Suitors' Fund Act . CA NO 40372 OF 2007 1. Leave to appeal granted. 2. The appellant to file its Notice of Appeal within ten days. 3. Appeal allowed with costs. 4. Order of Associate Justice Harrison granting leave under s 151D(2) of the Workers' Compensation Act to commence proceedings against the appellant set aside. 5. In lieu thereof order that the Notice of Motion of 22 December 2003 be dismissed with costs as against this appellant. 6. Respondent to have a certificate under the Suitors' Fund Act .

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40371/07 CA 40372/07

HODGSON JA TOBIAS JA HANDLEY AJA

7 April 2008 SEA COATINGS (AUSTRALIA) PTY LIMITED & ANOR v JODY PASCOE & ORS EDSOME PTY LIMITED v JODY PASCOE ORS

Judgment 1 HODGSON JA: I agree with Handley AJA. 2 TOBIAS JA: I agree with Handley AJA. 3 HANDLEY AJA: The proceedings comprise two applications for leave to appeal from a decision of Associate Justice Harrison who made orders under s 151D of the Workers' Compensation Act 1987 granting retrospective leave to the plaintiff to commence proceedings for damages against three of his former employers. 4 The Statement of Claim was filed on 17 August 2001 against four companies alleged to have employed the plaintiff between 1 July 1988 and 11 July 2000. The Amended Statement of Claim filed on 14 February 2002 alleged that those companies employed him between 1987 and 1999. Leave was not sought against Solitaire Pty Limited which was alleged to have employed the plaintiff as a casual between 1 July 1996 and September 1999. 5 Leave was sought against Sea Coatings (Australia) Pty Limited (the first claimant) which was alleged to have employed the plaintiff between 1987 and 1990, against Sea Coatings Pty Limited (the second claimant) which was alleged to have employed him during the same period and Edsome Pty Limited (the third claimant) which was alleged to have employed him as a full-time employee between 1990 and 1996, and as a casual until 1999. 6 The Statement of Claim alleged that in the course of his various employments he was exposed to dust from wood and concrete, and to fumes from paints, epoxies, thinners and solvents. He claims that as a result he now suffers from pneumonia, pulmonary alevitis, sarcodiosis, and industrial asthma. The plaintiff's respiratory illness commenced in 1995 when he lost time from work and he has had symptoms ever since. 7 A Notice of Motion seeking leave under s 151D was not filed until 22 December 2003 and the hearing did not commence until 16 November 2006. The judge found that the plaintiff's solicitors were responsible for these inordinate delays. As will appear they were partly due to the plaintiff's delay before consulting his solicitors in 2001, six years after his illness commenced. The subsequent delays were in large measure due to difficulties the solicitors experienced in establishing that the plaintiff had a worthwhile case. 8 The plaintiff said that in 1995 and for a long time afterwards he was not aware that his illness was connected with his work. He also did not realise how bad his condition was and he expected to get better. He sought legal advice in 2001 at his father's suggestion. 9 Section 151D(2) provides: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." 10 The section is directed to "the employer liable to pay that compensation". On his own case the plaintiff's symptoms represent one or more diseases contracted or aggravated as a result of his exposure to dust and fumes during his various employments. Compensation for an injury which is a disease contracted or aggravated in this way is governed by ss 15 and 16. 11 Section 15(1)(a) relevantly provides that where a disease is contracted by a gradual process the injury is deemed to have happened at the time of the worker's incapacity, and s 15(1)(b) provides that compensation is payable by the employer who last employed the worker in employment to the nature of which the injury was due. Under s 15 (2) such an employer has a right of contribution against any other employers who employed the worker in similar employment during the twelve months preceding his incapacity, but those employers are not directly liable to the worker. Section 16 contains a similar regime where the injury consists in the aggravation of a disease, and references to s 15 in what follows will apply mutatis mutandis to that section. 12 The plaintiff's incapacity occurred in August 1995 when the third claimant was his employer. If causation was established it was liable under s 15 to the exclusion of the first and second claimants. Those claimants were thus not employers liable to pay compensation to the plaintiff for the purposes of s 151D(2).

13 Section 151D(3) provides that the Limitation Act does not apply to or in respect of court proceedings "to which this section applies". Since s 151D(2) did not apply to the first and second claimants the causes of action against them were governed by the Limitation Act, and accrued not on exposure or incapacity, but when the plaintiff first suffered appreciable damage: Cartledge v E Jopling & Sons Ltd [1963] AC 758. This principle has particular relevance to personal injuries resulting from prolonged exposure to dusts or fumes. 14 The relevant limitation period under the Limitation Act was 3 years: s 18A(2) which could be extended for up to 5 years in accordance with ss 60C(2) and 60E. 15 The causes of action against those claimants first accrued in 1995 when the plaintiff first experienced symptoms allegedly caused by his exposure in their employment because there was no evidence that he had previously suffered appreciable damage. As it happened the accrual of damage for the causes of action against the first and second claimants occurred more or less on the deemed date of injury that fixed the start of the limitation period in s 151D(2) in respect of the third claimant. Thus in the present case the limitation periods are the same and time runs from more or less the same date. In practice the same principles will also apply whether the application is under s 151D(2) or s 60C, and the result will be the same in both cases. The Court should treat the application under s 151D(2) in respect of the first and second claimants as an application under s 60C. 16 Uninstructed by authority I would thus have held that s 151D(2) fixes a limitation period for an action for damages against an employer in respect of an injury by reference to that employer's liability to pay compensation to the plaintiff for that injury. This is because the section refers to: "A person to whom compensation is payable under this Act in respect of an injury …". Where the injury is a disease contracted from industrial exposure s 15 contains a code which identifies the employer who alone is liable to pay compensation, and the date on which that injury "happened". This must also be the date the injury was "received" for the purposes of s 151D(2). 17 Resort to s 15 for these purposes is thus mandated by the terms of s 151D(2). This construction does not require the phrase "for the purposes of this Act" in s 15(1)(a) to be given direct application to the sections dealing with liability for damages. The phrase does not have that effect, as this Court decided in Hobbs v Costain Australia Ltd (1995) 11 NSWCCR 56, University of New England v Larsen-Walsh [2000] NSWCA 363, and Kotevski v Esselte Australia Pty Limited [2005] NSWCA 126 (Kotevski). 18 In this case the cause of action at common law against the third claimant accrued more or less on the date the injury was deemed to have happened for the purposes of s 15. The problem in Kotevski (above), where the Court rejected an argument that s 151D(2) prevents time running from the accrual of a cause of action for damages in a s 15 case until the injury for which compensation is payable is deemed to have happened, does not arise in this case. In my judgment there is nothing in Kotevski which requires this Court to hold that s 151D(2) applies to employers who are not liable to pay compensation under the Act. 19 The plaintiff faced difficulties in proving his employment with the first and second claimants between 1987 and 1990, and in rebutting evidence of actual prejudice that those companies would suffer on that issue if leave were granted. 20 Mr Grounds, the managing director of the first claimant, had been a director of that company since 1986. At that time Mr Barry Pascoe, the plaintiff's father, was also a director. Mr Grounds was a director of the second claimant from 1979 until 1998, and a director of the third claimant from 1983 to 2003. 21 In 2002 he made inquiries with a view to establishing when the plaintiff was employed by the first, second and third claimants. The only records he could locate were duplicate group certificates which showed that the plaintiff was employed by the third claimant for the whole period from 1 July 1991 until September 1996. He was unable to locate any records prior to July 1991. The plaintiff had no records before 1996. 22 Mr Grounds said that the third claimant was purchased as a self company in 1983 "for the specific purpose of employing all the site employees working in the business of Sea Coatings, whilst the employees engaged in the administrative and clerical activities of that business were employed by a separate company. This was done in order that workers' compensation premium would not be payable upon the wages of employees engaged in purely administrative and clerical activities at the rates applicable to the wages of employees engaged in marine construction work." 23 He said that from memory the plaintiff commenced work for the third claimant in 1985-6 and the plaintiff's father made the necessary arrangements. Mr Grounds was not required for cross-examination and the plaintiff's father did not provide an affidavit in reply or give oral evidence. 24 The judge referred to Mr Grounds' affidavit and correctly summarised its effect (para [30]) but then said (para [31]): "However, as the plaintiff was not involved in administrative or clerical work Mr Grounds' evidence would suggest that the plaintiff was in fact employed by the third and fourth defendants" (that is the first and second claimants). 25 This was a serious error because Mr Grounds' affidavit evidence was that the plaintiff was employed by Edsome the third claimant, and not by the first two claimants. The judge then said that "central to this debate" about the plaintiff's periods of employment was the plaintiff's father. The plaintiff said that his father had been his supervisor in the early years. He was still in contact with his father who could come to court to give evidence. 26 The judge drew the usual Jones v Dunkel inference but then said (para [33]): "Barry Pascoe's evidence at trial can be expected to fill in the gaps." 27 This was a serious misdirection. An application for leave to commence proceedings under s 151D or an application to extend the limitation period under the Limitation Act is not the trial of the action or a dress rehearsal for the trial. However the plaintiff bears the legal onus of establishing that a fair trial of the action is still possible. If there is evidence of actual prejudice the plaintiff must deal with that evidence at the hearing of the extension application because prejudice will not be an issue at the trial. 28 The evidence of Mr Grounds prima facie established that the plaintiff had never been employed by the first and second claimants. It also established that those companies could no longer adduce documentary evidence of this because relevant employment records prior to 1 July 1991 were no longer available. Mr Barry Pascoe may still have had records for the earlier period and these and his oral evidence may have contradicted the evidence of Mr Grounds. His absence from the case provided a compelling reason for accepting the evidence of Mr Grounds. 29 The plaintiff failed to prove that he had a case fit to be tried against the first two claimants because it was not shown that they had ever employed him. In these circumstances the court could not properly grant leave under s 151D or extend the limitation period to allow the case to go to trial. Unless a gap of this nature is filled there should never be a trial.

30 The evidence established a clear case of actual prejudice in respect of the first and second claimants. At an earlier point of time documents existed which may have established beyond doubt that they had never employed the plaintiff. Documents dating from 1991 were still available in 2002. . It is reasonable to suppose that at the expiration in 1998 of the limitation periods employment records would still have existed for some if not all the years between 1986 and 1991. 31 The loss or destruction of those records leave the first and second claimants exposed at a trial to the risk of the plaintiff's father giving evidence contrary to that of Mr Grounds, and that evidence being accepted. This would be a miscarriage of justice if the lost documents would have supported Mr Grounds. In these circumstances a trial in 2009 or later on the identity of the plaintiff's employer between 1986 and 1991 would be unfair. The first and second claimants are entitled to be protected from that prejudice. Prejudice of this nature is one of the recognised rationales for limitation periods: Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541, 551-2. 32 The judge accepted the existence of presumptive prejudice but said nothing about actual prejudice (para [29]). She said that the limitation period expired at the end of 1993 at the latest so that the claim was brought seven years out of time (para [29]). This was not correct, but in this case the error was not material. 33 The judge's failure to refer to the evidence of actual prejudice advanced by the first and second claimants was a further error, although one that was largely consequential on the other errors referred to. There is no need, in relation to these claimants, to consider other evidence of actual prejudice. 34 The first and second claimants have demonstrated the existence of significant errors which caused the judge's exercise of discretion to miscarry. This court must therefore intervene and re-exercise the discretion. The judge herself said that this was a borderline case. Once the errors referred to are factored in the case for refusing an extension of the limitation periods against the first and second claimants becomes overwhelming. I would therefore grant leave and allow the appeals of these claimants. 35 The third claimant also challenged the grant of leave and it is necessary to consider other evidence. The plaintiff's medical evidence did not support his case on causation. Professor Bryant who treated the plaintiff from November 1995 until 2002 considered that the plaintiff was suffering from an idiopathic condition that was unlikely to be related to his work. Dr Hamor, another respiratory physician, saw the plaintiff briefly in 1995 and said in his report of 10 March 2003 that he did not think that the plaintiff's illness "was related to his occupation as a concreter" (AB 593)

36 Dr Gianoutsos gave a preliminary report on 17 March 2003 on the basis of information he said was incomplete. He noted a family history of asthma and that the plaintiff had no symptoms prior to his industrial exposure. He thought the plaintiff "might well have acquired occupation related asthma" and asked for further information. There was no further report from Dr Gianoutsos in evidence, and there was no evidence that the plaintiff's solicitors ever provided him with the further information he sought. 37 On 20 August 2006, Dr Crawford, another consultant respiratory physician, gave a report which the judge said (par [21]) expressed the opinion that the plaintiff probably had occupational related asthma. This was not an accurate summary of the report. Dr Crawford did state (AB 634) that: "if it is accepted that he does have asthma then is it occupation - related? If we accept the given history as true then I believe it probably is. He denies experiencing any significant respiratory symptoms until working for a number of years at Sea Coatings (Australia)." 38 Later Dr Crawford referred to Professor Bryant's reports, the biopsy the Professor performed in February 1996, and his opinion that the plaintiff was suffering from chronic eosinophilic pneumonia. Dr Crawford referred to aspects of this condition and said: "This raises the possibility Mr Pascoe's eosinophilic pneumonia reaction may have been caused by the same work-related agent as was responsible for his asthma. Another possibility is that of a hypersensitivity pneumonitis which also can cause an eosinophilia on lung biopsy" (AB 634-5) (emphasis supplied). 39 Dr Crawford concluded (635): "As such I agree with Dr Bryant, that on the information available, the most likely diagnosis of his parenchymal disease is chronic eosinophilic pneumonia, which may also have been sustained from work-related exposure." (emphasis supplied). 40 The judge said that in her view the report of Dr Crawford and the other matters she referred to established that the plaintiff had a real cause of action to advance against the defendants. In my judgment this finding significantly overstated the effect of Dr Crawford's report considered as a whole and ignored other evidence which demonstrated that the history on which Dr Crawford relied was seriously incomplete. 41 The plaintiff was admitted to Bankstown Hospital on 1 October 1995 suffering from pneumonia, with a secondary diagnosis of exacerbated asthma. The hospital records are in evidence. On discharge he was referred to Dr Hamor for follow up treatment and to consider whether he was suffering from occupational asthma (AB 599). His GP at the time was Dr Rankin whose records were produced on subpoena, and it was not suggested that they are not available. Dr Rankin referred the plaintiff to Professor Bryant whose reports to Dr Rankin are in evidence. 42 The actual prejudice in respect of medical issues on which the third claimant relies is that Dr Hamor's records are no longer available (AB 673). Thus it will no longer be possible to determine whether he took a more extensive history than that referred to in his report. Reliance was also placed on the absence of records from a Dr Rockman from the George Street Clinic in the City (AB 676, 681). The plaintiff said he saw Dr Rockman (644) but there is no evidence that Dr Rockman could ever have said anything useful about the plaintiff's condition or its causes. 43 In view of the other medical and hospital records dating from 1995 which are still available the loss of Dr Hamor's records and any records that Dr Rockman may have had could only have a minimal impact on the fairness of a trial. 44 When the plaintiff saw Mr Healey on 9 August 2001 the latter noted that in August 1995 (AB 640-1) when the plaintiff was working near the edge of a wharf at Walsh Bay his wallet fell into the water. The plaintiff jumped in, retrieved his wallet, and swam a hundred metres to a ladder to get out (642). The next day he started to feel symptoms of a mild flu which gradually got worse.

45 First he had a wet cough, then a sore throat, and, then wheezing (T 501). He said that as a result of his exposure to the sea on this occasion he developed pneumonia, and later pulmonary alveolitis (T 473). He consulted Dr Rankin about his chest and respiratory symptoms on 21 September (T 499). This was the first time he had consulted the doctor about his chest (T 500). He had not previously lost time from work because of respiratory complaints. He then developed pneumonia, became very ill, and was admitted to Blacktown Hospital (T 501). 46 The hospital notes record that on admission he complained of shortness of breath for the last three weeks, that he had consulted his local doctor who had diagnosed heavy asthma and prescribed medication. He said he had previously been well (AB 604). The notes do not refer to the plaintiff's swim in Walsh Bay and its aftermath. 47 The histories recorded by Professor Bryant, and by Drs Hamor, Gianoutsos and Crawford contain no reference to the plaintiff's swim in Walsh Bay, the onset of symptoms the following day, and his progressive deterioration until his admission to Blacktown Hospital. This sequence of events gives rise to the inference that the swim and its aftermath, rather than his industrial exposure to dust and fumes was the real cause of his illness and his continuing symptoms. The court is entitled to act on the inference of causation arising from the sequence of events despite the absence of expert evidence on that question. As Rich ACJ said in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45, 64 CLR 538, 563: "I am greatly impressed by the sequence of events … I do not see why a court should not begin its investigation ie before hearing any medical testimony, from the stand point of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology."

See also Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724 per Mason J. 48 The family history of asthma suggests that the plaintiff may have had a predisposition which remained asymptomatic until his swim and its aftermath. 49 The plaintiff bore the onus of establishing that he had a case fit to be tried. The evidence in report form from Professor Bryant, Dr Hamor and Dr Gianoutsos, who did not have the benefit of a history of the swim and its aftermath, does not support the plaintiff's claim that his industrial exposure in the employment of the third claimant was a cause of his continuing symptoms. 50 Dr Crawford provides a scintilla of support for the plaintiff's case on causation, but he said in terms that this was dependent on acceptance of the plaintiff's history. Dr Crawford's history did not include the swim and its aftermath. Even on the history he was given Dr Crawford appears to accept Professor Bryant's opinion that the plaintiff was suffering from chronic eosinophilic pneumonia. There is no evidence that the plaintiff's condition deteriorated after 1995 despite his further industrial exposure. 51 The plaintiff was three years out of time against the third claimant when the Statement of Claim was filed, but eight years out of time when the hearing of the Notice of Motion commenced. On the present state of the evidence Dr Crawford's favourable opinion, tentative at best, was fatally undermined by his incomplete history and his lack of knowledge of the swim and its aftermath. At best the plaintiff had a weak case, at worst he had none. As Basten JA said in Commonwealth of Australia v Shaw [2006] NSWCA 209, 66 NSWLR 325, 336 para [40], and 346 para [83] the apparent weakness of the plaintiff's case is a factor which militates against an extension of time. 52 The judge wrongly treated Dr Crawford's opinion as establishing that the plaintiff had a case fit to be tried on the causation issue. Moreover she did not refer to the plaintiff's swim and its aftermath. In my judgment these errors vitiated her exercise of discretion in relation to the third claimant, and I would intervene. On a re-exercise of the discretion I would refuse leave to commence proceedings against the third claimant. The following orders should be made: CA NO 40371 OF 2007 1. Leave to appeal granted. 2. The appellants to file their Notice of Appeal within ten days. 3. Appeal allowed with costs. 4. Order of Associate Justice Harrison granting leave under s 151D(2) of the Workers' Compensation Act to commence proceedings set aside. 5. In lieu thereof order that the Notice of Motion of 22 December 2003 be dismissed with costs as against the appellants. 6. Respondent to have a certificate under the Suitors' Fund Act. CA NO 40372 OF 2007 1. Leave to appeal granted. 2. The appellant to file its Notice of Appeal within ten days. 3. Appeal allowed with costs. 4. Order of Associate Justice Harrison granting leave under s 151D(2) of the Workers' Compensation Act to commence proceedings against the appellant set aside. 5. In lieu thereof order that the Notice of Motion of 22 December 2003 be dismissed with costs as against this appellant. 6. Respondent to have a certificate under the Suitors' Fund Act .

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